Citation Nr: 0116277
Decision Date: 06/14/01 Archive Date: 06/19/01
DOCKET NO. 97-23 761A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to an increased evaluation for cervical
myelopathy with weakness of the left upper extremity and
associated conversion reaction, currently rated as 40 percent
disabling.
2. Entitlement to an increased evaluation for the residuals
of a compression fracture at C3-4, with C5 corpectomy, rated
as 30 percent disabling, prior to November 18, 1998.
3. Entitlement to an increased evaluation for the residuals
of a compression fracture at C3-4, with C5 corpectomy, rated
as 30 percent disabling, after January 31, 1999.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
Patrick J. Costello, Counsel
INTRODUCTION
The veteran had active military service from September 1950
to August 1951.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a June 1997 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO), in
St. Petersburg, Florida. In July 1998, the Board remanded
the case for the purpose of obtaining additional medical
information. That information has since been obtained and
the claim has been returned to the Board for review.
The veteran was assigned a 30 percent rating from January 29,
1986, a 100 percent rating per 38 C.F.R. § 4.30 from November
18, 1998, to January 31, 1999, and a 30 percent rating from
February 1, 1999.
FINDINGS OF FACT
1. Sufficient evidence for an equitable disposition of the
veteran's appeal has been obtained by the agency of original
jurisdiction.
2. The veteran's cervical myelopathy is manifested primarily
by complaints of pain, minor neurological deficits in the
left arm, and some limitation of motion. He is not suffering
from severe incomplete paralysis nor does he have complete
paralysis of the left upper extremity and neck.
3. The record does not show that the limitation of the
motion of the veteran's cervical segment of the spine is
severe, that the cervical spine is ankylosed, or that there
is an intervertebral cervical disc syndrome that is currently
at least of a severe nature, with recurring attacks with
little intermittent relief.
CONCLUSIONS OF LAW
1. VA has satisfied its duty to assist the veteran in
developing facts pertinent to this claim. Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, § 4, 114 Stat.
2096, 2097-98 (2000) (to be codified as amended at 38 U.S.C.
§ 5103A); 38 C.F.R. § 3.103 (2000).
2. The criteria for an evaluation in excess of 40 percent
for cervical myelopathy with weakness of the left upper
extremity and associated conversion reaction have not been
met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.2,
4.7, 4.10, Part 4, Diagnostic Codes 8010 and 8513 (2000).
3. The criteria for an evaluation in excess of 30 percent
for the residuals of a compression fracture at C3-4, with C5
corpectomy, prior to November 18, 1998, have not been met.
38 U.S.C.A. §§ 1155 (West 1991); 38 C.F.R. Part §§ 4.1, 4.2,
4.7, 4.10, Part 4, Diagnostic Codes 5285, 5290, 5286, 5287,
and 5293 (2000).
4. The criteria for an evaluation in excess of 30 percent
for the residuals of a compression fracture at C3-4, with C5
corpectomy, after January 31, 1999, have not been met.
38 U.S.C.A. §§ 1155 (West 1991); 38 C.F.R. Part §§ 4.1, 4.2,
4.7, 4.10, Part 4, Diagnostic Codes 5285, 5290, 5286, 5287,
and 5293 (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Background
While stationed in Korea in November 1950, during the Korean
War, the veteran was shot in the neck. The bullet entered
the left side of the neck and exited the back side of the
neck. He was treated for approximately eight months and then
released from active duty. In 1955, the veteran applied for
VA compensation benefits, and as a result of that
application, a physical of the veteran was accomplished. The
results of that exam are listed below:
The veteran is well developed and
nourished. In the mid line of the neck
posteriorly, extending from the posterior
occipital protuberance down to the
posterior spinous process of T-1, is a
surgical scar 6" long and from 1/8 to
1/4" wide. Just below the left angle of
the mandible is an almost imperceptible
scar 1/2 x 1/4". It is not tender,
depressed or adherent. 1 1/4" to the
right of the mid line of the neck
posteriorly near the outer border of the
trapezius muscle and at about the level
of C-4 is a scar 1/4" in diameter. These
scars are not tender, depressed or
adherent. The cervical curve is normal.
There is acute tenderness to light
pressure over the posterior surface of
the neck but not much tenderness on
deeper pressure. We believe we can
detect the absence of the posterior
spinous processes of some of the middle
cervical vertebrae. There is no
limitation of motion of the neck. There
is no apparent atrophy of the shoulder
girdle muscles. The left arm at the
middle is 1/4" smaller than the right.
The forearms measure the same. The
veteran is right handed. There is no
limitation of motion of any of the joints
of the upper extremities but extremes of
motion of the left shoulder are painful.
The grip of the left hand is considerably
weaker than the right and there is some
weakness of flexion and extension of the
left elbow.
X-ray films of the cervical segment of the spine showed
straightening of the normal cervical lordotic curve, and
there was a laminectomy in the region of C3 and C4. There
was an irregular fragment of bone overlying the dorsal
spinous process of C5 and the superior portion of the
ligamentum nuchae was partially calcified.
Around this same time, a VA neurological examination was also
done. The doctor summarized the examination and stated that
the veteran had weakness of the left arm and hand. Also
present was hypesthesia and dysesthesia. Numbness over the
entire body, along with weakness in the right arm, was not
present.
As a result of the examinations, along with a review of the
veteran's service medical records, the veteran was granted
service connection for the residuals of a gunshot wound to
the neck and cervical spine. The rating was granted in July
1955, and a 30 percent disability rating assigned. A year
later, in August 1956, the veteran's rating was "corrected"
such that he was service-connected with myelopathy of the
cervical segment of the spine (30 percent disabling), through
and through wound of the neck, moderately severe injury to
Muscle Group XXIII (20 percent disabling), and the residuals
of a compression fracture at C3 and 4 (20 percent disabling
(10 percent included in the evaluation for demonstrable
deformity of the vertebral body)).
In November 1966, the veteran's disability rating was
modified to reflect that the veteran was suffering from a
conversion reaction and that this was related to his cervical
myelopathy. His rating for this particular disability was
raised from 30 to 40 percent.
Over thirty years later, the veteran requested that his
service-connected disabilities be re-evaluated because he
believed that they had become more debilitating. In March
1997, in conjunction with the veteran's claim for increased
benefits, neurological and orthopaedic examinations of the
veteran were conducted. The veteran complained of diminished
sensation in the entire left upper and lower extremities,
along with pain in his neck and back. The orthopaedic
examiner found diminished strength in the external rotation
of the veteran's left shoulder, although there was normal
internal rotation and abduction in the same shoulder. The
orthopaedic examiner further noted in the examination report:
. . . Sensation in the left upper
extremity is subjectively diminished but
the patient does [say] that he can feel
sensation throughout the left upper
extremity. Grip strength is normal and
the patient has normal elbow flexion and
extension strength. He has normal
strength of the wrist as well.
Evaluation of the left lower extremity
reveals normal flexion and extension at
the hip, knee, and ankle. The patient
does have giveaway strength in hip
flexion and in knee flexion, but the
strength does appear to be equal to the
opposite side when he gives maximal
effort. Sensation is again subjectively
diminished to light touch through the
left lower extremity and no particular
nerve distribution. . . .
. . . The patient does have some weakness
in external rotation of the left
shoulder. This may be related to a tear
of the infraspinatus tendon in the left
shoulder. The patient does not report
any history of injury that would
predispose him to or cause a tear of the
infraspinatus tendon while in the
military. I, therefore, can only assume
that if he does have an infraspinatus
tendon tear, it occurred after his
discharge from the military. The patient
also reports diminished sensation
throughout the left side of the body.
This could be related to the gunshot
wound he sustained to his neck, but it is
also possible that it is a conversion
reaction. . . .
With respect to the neurological examination, prior to that
exam, the veteran complained of neck pain. However, he also
stated that he was not undergoing physical therapy and he had
not been seen for pain at the VA Pain Clinic for at least
four years. The examination results were reported as
follows:
. . . No postural abnormalities and
no fixed deformities. The musculature of
the back is well-developed. The patient
has a well-healed posterior cervical
incision and paraspinal tenderness,
moderate in bilateral paraspinal
musculature. Range of motion - 100
degrees of forward flexion, backward
extension 10, left lateral flexion is 30
with pain, right lateral flexion 20,
rotation to the left 20, rotation to the
right 10. There is a positive Spurling-s
sign on the right.
Motor exam is 4+/5 on the left deltoids,
biceps, wrist flexion and extension and
hand intrinsics. He has 4-/5 on left
triceps. Sensation is decreased to
pinprick in upper extremities throughout,
non-dermatomal distribution. Motor exam
is 5/5 except for the above findings.
Gait is normal. Deep tendon reflexes are
+3 throughout. Toes equivocal
bilaterally. There is no ankle clonus.
X-ray films produced at the time showed a previous
laminectomy at C3-4 as well as a removal of the spinous
processes. There was a mildly decreased right C6-7 neural
foramen. Anterior osteophytic arthritis was found in the
lumbar segment of the spine. Also noted was decreased disc
space at L5-S1 and severe degenerative joint disease of the
lumbar vertebral body height at L4 and L5.
A diagnosis of mild lumbar myofascial syndrome were given.
The examiner also opined that any increased symptoms he was
experiencing was not due to his service-connected residual
cervical myelopathy. Additionally, it was reported that the
veteran was not experiencing bowel or bladder incontinence
and his strength was at "baseline". The veteran's
complaints and symptoms, per the examiner, were related to
his cervical spondylosis and arthritis.
After the examinations were completed, the RO obtained the
veteran's VA medical records. These records showed that in
August 1996 the veteran underwent surgery on his left
shoulder. Specifically, the surgery was accomplished in
order to "redo" a left shoulder acromioplasty.
An VA orthopaedic examination of the veteran's back was
accomplished in August 1998. It produced the below results:
. . . somewhat limited movement of
the neck as follows. The patient has
normal flexion, 10 to 15 degrees of
extension, 20 degrees of lateral bending
bilaterally. Wounds examined on the neck
appear to be well-healed. Strength in
his upper extremities are 5/5 bilaterally
in all major muscle groups including
grip, biceps, triceps and deltoid with
the exception of the left deltoid which
is 4+/5 and appears to be give-way in
nature, likely secondary to his two
shoulder surgeries. The patient does
have decreased sensation to light touch
and pinprick in the entirety of his left
hand. Reflexes are 3+ bilaterally
throughout his upper extremities. The
patient also brings with him today an x-
ray of his cervical spine which shows
spinous processes missing at C3 and C4
which is consistent with post-surgical
changes. Alignment of the cervical
vertebral bodies appears good. The
patient also has with him a MRI of his
cervical spine which shows mild loss of
his cervical lordosis and some narrowing
of the left C6-C7 foramen as well as
small central herniated disks as C4-C5
and C5-C6.
Impression:
In my opinion, the patient does have some
functional loss at the neck as far as
rotation is considered and likely has
increased fatigability secondary to his
pain. This would hamper him with
activities such as looking left and right
while driving. Loss of function in the
upper extremities bilaterally, however,
appears to be minimal with the exception
of range of motion of the left shoulder
most likely secondary to his shoulder
surgeries rather than his cervical
stenosis.
In January 1999, the veteran underwent an operation on the
neck. The procedures performed was a C5 corpectomy, C4-5 and
5-6 diskectomies, fusion with allograft, and placement of
anterior cervical instrumentation. As a result of the
surgery, and the initial workup, symptoms, and manifestations
causing the surgery, the veteran's second disability,
residuals of a compression fracture C3-4 with C5 corpectomy,
the veteran was given a temporary total rating from November
18, 1998, to February 1, 1999.
Another orthopaedic examination was done in May 2000. The
veteran complained of some pain in his neck and upper
thoracic segment of the spine. He also stated to the
examiner that since his November 1998 surgery, he had
experienced more difficulty in speaking and swallowing. The
examination was accomplished, and the doctor wrote:
The patient's range of motion of the
cervical spine is approximately one half
that of normal with the patient being
able to flex to 45 degrees, extend 45
degrees, lateral rotation 40-45 degrees
bilaterally, lateral bending
approximately 35 degrees bilaterally. It
should be noted that the patient has pain
on the extreme range of each of those
motions. Strength examination of the
upper extremity revealed 5/5 muscle
strength in all major muscle groups in
the right upper extremity. In the left
upper extremity, the patient has 4/5
strengthening grip, 4+/5 strengthened
biceps, 4/5 triceps and 4/5 deltoid.
Sensation is intact throughout the upper
extremities with the exception of
hyperesthesia in the left C6 and C-7
dermatomes. Reflexes are 3+ in the upper
extremities. The patient does have
bilateral Hoffmann's sign. The patient
has normal muscular bulk in the upper
extremities with some increased tone
noted. The patient is currently
ambulatory without assistance.
CLINICAL IMPRESSION: The patient is with
objective weakness in the left upper
extremity as well as approximately one
half normal range of motion in all
modalities of the cervical spine.
Additionally, the patient has pain with
movement of the upper neck as well as
hyperreflexia all of which may indicate
some new compression of his cervical
cord, however, this could be consistent
with preexisting damage to the cervical
cord. The fact that the patient states
that his weakness was relieved for at
least a short period of time following
the surgery, this likely represents new
compression of the cervical cord.
Additionally, the patient complains of
some difficulty swallowing, which may
stem from either damage to the esophagus
or possibly shifting of the graft in the
cervical spine. The patient is unable to
relate an exact onset of the difficulty
in swallowing. Taking into account all
of the above mentioned, the patient would
have some difficulty with his activities
of daily living including his mentioned
swallowing, although the patient does not
relate any substantial weight loss over
the last several months. Additionally,
the patient would have difficulty using
his left upper extremity for either
strenuous tasks or tasks which require
high level of coordination. Finally, the
patient would have difficulty with range
of motion for such tasks as turning his
head while driving a vehicle.
Because the RO has not granted the veteran an increase in his
disability ratings, the veteran has continued his appeal
before the Board.
II. Analysis
The veteran has appealed the denial of his request to have
his neck disabilities rated higher. When a veteran submits a
compensation claim to VA, VA has a duty to assist him/her
with that claim. Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2097-98 (2000)
(to be codified at 38 U.S.C. § 5103A); 38 C.F.R. § 3.103
(2000). Over the course of this appeal, VA has provided
numerous examinations of the neck and upper back area and it
has obtained his VA treatment records. Additional private or
other government records that would assist in the processing
of this claim have not been identified by the veteran. The
veteran has been provided appropriate notice of the pertinent
laws and regulations, and he has been given the opportunity
to provide additional information in support of his claim.
VA has satisfied its duty to assist the veteran.
Disability evaluations are determined by the application of a
schedule of ratings which is based on the average impairment
of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38
C.F.R., Part 4 (2000). Separate diagnostic codes identify
the various disabilities. 38 C.F.R. § 4.1 (2000) requires
that each disability be viewed in relation to its history and
that there be emphasis upon the limitation of activity
imposed by the disabling condition. 38 C.F.R. § 4.2 (2000)
requires that medical reports be interpreted in light of the
whole recorded history, and that each disability must be
considered from the point of view of the veteran working or
seeking work. 38 C.F.R. § 4.7 (2000) provides that, where
there is a question as to which of two disability evaluations
shall be applied, the higher evaluation is to be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating is to
be assigned.
These requirements for evaluation of the complete medical
history of the claimant's condition operate to protect
claimants against adverse decisions based on a single,
incomplete or inaccurate report and to enable VA to make a
more precise evaluation of the level of the disability and of
any changes in the condition. Schafrath v. Derwinski, 1 Vet.
App. 589 (1991). Moreover, VA has a duty to acknowledge and
consider all regulations that are potentially applicable
through the assertions and issues raised in the record, and
to explain the reasons and bases for its conclusion.
"The regulations do not give past medical reports precedence
over current findings." Francisco v. Brown, 7 Vet. App. 55,
58 (1994). While the evaluation of a service-connected
disability requires a review of the appellant's medical
history with regard to that disorder, the United States Court
of Appeals for Veterans Claims (the Court) has held that,
where entitlement to compensation has already been
established, and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
Id. An evaluation of the level of disability present also
includes consideration of the functional impairment of the
veteran's ability to engage in ordinary activities, including
employment, and the effect of pain on the functional
abilities. 38 C.F.R. § 4.10 (2000).
In general, all disabilities, including those arising from a
single disease entity, are rated separately, and all
disability ratings are then combined in accordance with 38
C.F.R. § 4.25 (2000). However, the evaluation of the same
"disability" or the same "manifestations" under various
diagnoses is not allowed. 38 C.F.R. § 4.14 (2000). Thus, a
claimant may not be compensated twice for the same
symptomatology as ". . . such a result would overcompensate
the claimant for the actual impairment of his earning
capacity." See Brady v. Brown, 4 Vet. App. 203, 206 (1993)
(interpreting 38 U.S.C.A. § 1155). This would result in
pyramiding, which is contrary to the provisions of 38 C.F.R.
§ 4.14 (2000). A claimant may have separate and distinct
manifestations attributable to the same injury, however, and
if so, these should be rated under different diagnostic
codes. See Fanning v. Brown, 4 Vet. App. 225 (1993).
VA's Office of the General Counsel provided additional
guidance involving increased rating claims for
musculoskeletal joint disabilities. Specifically, the
General Counsel held that where the medical evidence shows
that a veteran has arthritis of a joint and where the
diagnostic code applicable to his/her disability is not based
upon limitation of motion, a separate rating for limitation
of motion under diagnostic code 5003 may be assigned, but
only if there is additional disability due to limitation of
motion. See VAOPGCPREC 23-97 (July 1, 1997).
A. Cervical Myelopathy
The veteran's cervical myelopathy has been evaluated in
accordance with 38 C.F.R. Part 4, Diagnostic Codes 8010 and
8513 (2000). Diagnostic Code 8010 provides for the
evaluation of myelitis. 38 C.F.R. Part 4 (2000). The note
in 38 C.F.R. § 4.124a (2000) provides that with the
exceptions noted, disability from the following diseases and
their residuals may be rated from 10 percent to 100 percent
in proportion to the impairment of motor, sensory, or mental
function. Consideration is given especially to psychotic
manifestations, complete or partial loss of use of one or
more extremities, speech disturbances, impairment of vision,
disturbances of gait, tremors, visceral manifestations, with
reference to the appropriate bodily system of the schedule.
With partial loss of use of one or more extremities from
neurological lesions, the condition should be rated by
comparison with the mild, moderate, severe, or complete
paralysis of peripheral nerves.
Per 38 C.F.R. Part 4, Diagnostic Code 8513 (2000), a 10
percent evaluation is warranted for mild incomplete paralysis
of all radicular nerves of the major upper extremity. A 40
percent rating requires moderate incomplete paralysis and
where there is severe incomplete paralysis, a 70 percent
evaluation will be awarded. If there is complete paralysis,
a 90 percent evaluation will be assigned.
The note in the Schedule of Ratings provides that the term
"incomplete paralysis" indicates a degree of lost or
impaired function which is substantially less than that which
results from complete paralysis of these nerve groups,
whether the loss than total paralysis is due to the varied
level of the nerve lesion or to partial nerve regeneration.
When the involvement is wholly sensory, the rating should be
for the mild, or at most, the moderate degree. 38 C.F.R.
§ Part 4, Diagnostic Codes 8510 through 8530 (2000).
In determining whether an increased evaluation is warranted,
the VA must determine whether the evidence supports the claim
or is in relative equipoise, with the veteran prevailing in
either event, or whether the preponderance of the evidence is
against the claim, in which case an increased rating must be
denied. Veterans Claims Assistance Act of 2000, Pub. L. No.
106-475, § 4, 114 Stat. 2096, 2098-99 (2000) (to be codified
as amended at 38 U.S.C. § 5107); Gilbert v. Derwinski, 1 Vet.
App. 49 (1990). The evidence reveals mild weakness of the
left arm, with some decreased sensation, and pain. However,
none of the evidence shows that the veteran experiences
severe incomplete paralysis or even complete paralysis.
Thus, while the veteran does suffer from decreased muscle
strength and some decreased range of motion, it is the
decision of the Board that the evidence does not demonstrate
that the veteran's symptoms and manifestations would support
a disability rating in excess of 40 percent. Hence, the
veteran's claim is denied.
B. Compression Fracture
The severity of the veteran's service-connected neck
disability, i.e., compression fracture of C3-4, is currently
evaluated for VA compensation purposes under VA's Schedule
for Rating Disabilities. See 38 C.F.R. Part 4, Diagnostic
Codes 5285, 5286, 5287, 5290, and 5293 (2000). Separate
evaluations under each of these codes are not appropriate
because the rule against pyramiding of benefits mandates that
"the rating schedule may not be employed as a vehicle for
compensating a claimant twice (or more) for the same
symptomatology; such a result would overcompensate the
claimant for the actual impairment of his earning capacity."
38 C.F.R. § 4.14 (2000); Brady v. Brown, 4 Vet. App. 203, 206
(1993); see also Esteban v. Brown, 6 Vet. App. 259, 262
(1994) ("The critical element is that none of the
symptomatology . . . is duplicative of or overlapping with
the symptomatology of the other . . . conditions."); see
also VAOPGCPREC 23-97 (July 1, 1997) (where the medical
evidence shows that the veteran has arthritis of a joint and
where the diagnostic code applicable to his/her disability is
not based upon limitation of motion, a separate rating for
limitation of motion under diagnostic code 5003 may be
assigned, but only if there is additional disability due to
limitation of motion.) Diagnostic code 5293 specifically
encompasses loss of range of motion, so that additional
ratings for painful or limited motion of the spine would
constitute pyramiding, or compensating twice for the same
disability. VAOPGCPREC 36-97 (December 12, 1997). However,
the Board will address the rating criteria of each of these
diagnostic codes, all of which apply to the symptoms of the
veteran's neck condition, to ensure that the veteran's
disability receives the highest applicable rating.
The veteran's disability, as noted above, can be rated under
the criteria listed below:
Diagnostic Code 5285 Vertebra, fracture
of, residuals:
With cord involvement, bedridden, or
requiring long leg braces
100
Without cord involvement; abnormal
mobility requiring neck brace (jury mast)
60
In other cases rate in accordance with
definite limited motion or muscle spasms,
adding 10 percent for demonstrable
deformity of vertebral body.
Diagnostic Code 5286 Spine, complete
bony fixation (ankylosis) of:
Unfavorable angle, with marked deformity
and involvement of major joints (Marie-
Strumpell type) or without other joint
involvement (Bechterew type)
100
Favorable angle 60
Diagnostic Code 5287 Spine, ankylosis
of, cervical:
Unfavorable
40
Favorable 30
Diagnostic Code 5290 Spine, limitation
of motion of, cervical:
Severe
30
Moderate 20
Slight
10
(CONTINUED ON NEXT PAGE)
Diagnostic Code 5293 Intervertebral disc
syndrome
Pronounced; with persistent symptoms
compatible with sciatic neuropathy with
characteristic pain and demonstrable
muscle spasm, absent ankle jerk, or other
neurological findings appropriate to site
of diseased disc, little intermittent
relief 60
Severe; recurring attacks, with
intermittent
relief
40
Moderate; recurring attacks
20
Mild 10
Postoperative, cured 0
Because there is a lack of evidence of complete bony fixation
of the spine, diagnostic code 5286 is, similarly, not
applicable. Id. In addition, diagnostic code 5287 is not
applicable because there is no evidence of ankylosis of the
lumbar spine. Id.
With respect to diagnostic code 5285, it is for application
because the veteran did suffer from a fracture at C3-4.
However, even though there was a compression fracture nearly
50 years ago, there is no cord involvement. Thus, an
evaluation of 60 or 100 percent are not for application.
Because x-ray films have shown a deformity at C3-4, a ten
percent addition is appropriate.
Nevertheless, in the present case, a rating higher than 30
percent [the maximum available under 38 C.F.R. Part 4,
Diagnostic Code 5290 (2000) plus ten percent pursuant to 38
C.F.R. Part 4, Diagnostic Code 5285 (2000)] is available only
by reference to the relevant diagnostic code for
intervertebral disc syndrome. 38 C.F.R. Part 4, Diagnostic
Code 5293 (2000).
From the time that the veteran filed his claim to the most
recent medical reports, the record reflects that the
measurement of the range of motion of the neck has been half
of what is normally found. He has lost movement of the neck.
Moreover, he has, per his written statements and statements
given to medical personnel examining him, continued to suffer
from pain. He has lost some functioning as a result of the
pain. Yet, while the record does reflect that there is some
neurological symptomatology although it is somewhat unclear
whether that symptomatology is due to the compression
fracture or to the cervical myelopathy or some other
nonservice-connected condition.
Additionally, the medical evidence, prior to and after his
neck surgery in 1998, has not indicated that the veteran
constantly experiences pain in the neck due solely to the
area of the compression fracture. While the veteran does
take medications to relieve the pain, the record does not
show that he has used the VA Pain Clinic for relief nor has
he been consistently using physical therapy to attempt to
improve his condition. In fact, prior to his surgery in
1998, the veteran stated that he had not used the VA Pain
Clinic for at least four years prior to filing for an
increased evaluation. With respect to his post-surgical
records, they are silent as to any appointments or treatments
for pain at the VA Pain Clinic. Also, both pre- and post-
surgical records do not show that the veteran experiences
cervical muscle spasms, or absent reflexes.
In determining whether an increased evaluation is warranted,
the VA must determine whether the evidence supports the claim
or is in relative equipoise, with the veteran prevailing in
either event, or whether the preponderance of the evidence is
against the claim, in which case an increased rating must be
denied. Veterans Claims Assistance Act of 2000, Pub. L. No.
106-475, § 4, 114 Stat. 2096, 2098-99 (2000) (to be codified
as amended at 38 U.S.C. § 5107); Gilbert v. Derwinski, 1 Vet.
App. 49 (1990). In view of the foregoing, the Board finds
that the manifestations shown by the evidence to result from
the veteran's service-connected neck condition do not support
a 40 percent disability rating. [38 C.F.R. Part 4,
Diagnostic Codes 5293 and 5290 (2000) with an additional 10
percent rating added per 38 C.F.R. Part 4, Diagnostic Code
5285 (2000).]
The Board further concludes that the medical evidence in this
case was adequately detailed for rating purposes including
consideration of the criteria in sections 4.40 and 4.45,
which provide "guidance for determining ratings under . . .
diagnostic codes assessing musculoskeletal function."
Spurgeon v. Brown, 10 Vet. App. 194, 196 (1997); 38 C.F.R. §§
4.40, 4.45 (2000). For example, in the VA examination
reports, the examiners provided measurements of range of
motion, and noted the veteran's complaints of pain. Remand
for further development of the medical evidence is not
warranted. See Soyini v. Derwinski, 1 Vet. App. 540, 546
(1991) (strict adherence to requirements in the law does not
dictate an unquestioning, blind adherence in the face of
overwhelming evidence in support of the result in a
particular case; such adherence would result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994)
(remands which would only result in unnecessarily imposing
additional burdens on VA with no benefit flowing to the
veteran are to be avoided); cf. Brady v. Brown, 4 Vet. App.
203, 207 (1993) (a remand is unnecessary even where there is
error on the part of VA, where such error was not ultimately
prejudicial to the veteran's claim).
Accordingly, for the reasons discussed above, the evidence
does not support an increased rating for the veteran's
service-connected neck disability (compression fracture)
disability. Hence, the veteran's request for an evaluation
in excess of 30 is denied.
ORDER
1. Entitlement to an increased evaluation for cervical
myelopathy with weakness of the left upper extremity and
associated conversion reaction, is denied.
2. Entitlement to an increased evaluation for the residuals
of a compression fracture at C3-4, with C5 corpectomy, rated
as 30 percent disabling, prior to November 18, 1998, is
denied.
3. Entitlement to an increased evaluation for the residuals
for a compression fracture at C3-4, with C5 corpectomy, rated
as 30 percent disabling, after January 31, 1999, is denied.
M. W. GREENSTREET
Member, Board of Veterans' Appeals